Complainant

Respondent

Parties

Samantha  O'Halloran

Abbott Ireland Vascular Division

Representatives

N/A 

Terry MacNamara, IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00044441-001

01/06/2021

The Complainant commenced employment with the Respondent on 26 May 2014 as an

Assemblerand is paid a yearly salary of €25,106.64. She stated that she did not receive any sick pay for two periods in November 2020 and January 2021.

The facts of this dispute are set out in the Summary of the Respondent’s case below.

The Complainant in her written submission also highlighted that she followed the advice of the second Occupational Health Practitioner and did not attend for work on 13 January 2021 because she was unable to do so. Specifically, his medical report stated that “She was advised by myself that if her pain reoccurred and was significant at work, she should cease work and seek specialist advice.” The Complainant asserted that she should therefore have received sick pay for the three days from 13 to 15 January inclusive.

The Respondent stated that the Complainant’s first day of absence commenced on 8 October 2020 and highlighted that she was paid sick pay benefit in accordance with the Attendance and Sick Pay Policy from 8 October 2020 until 5 November 2020.

On 16 October 2020, the Complainant was reviewed by an Occupational Health Practitioner (OHP). The OHP deemed the Complainant to be fit to return to work with full duties on

26 October 2020. The Complainant disputed the advice of the OHP. The Respondent addressed this issue and arranged a follow-up review by another OHP on 2 November 2020. This OHP deemed the Complainant fit to return to work with accommodations in place from 5 November 2020. The Complainant disputed the advice of the new OHP by continuing to provide medical certificates from her own GP. The Respondent made arrangements to adhere to the OHP’s advice on accommodations for the Complainant.

When the Complainant failed to return to work after being deemed fit by the second OHP,

the sick pay benefit was removed from Monday 9 November 2020 as the Complainant was

deemed to be non-compliant with the requirements of the Attendance & Sick Pay policy.

On 12 November 2020, with the Complainant’s consent, the OHP consulted with the Complainant’s GP. Further to this consultation, the OHP maintained his opinion on the Complainant’s fitness to return to work with accommodations. The Complainant was informed of this.

On 16 November 2020, the Complainant returned to work for 1 hour. The Respondent consulted with the OHP who again advised he maintained his medical opinion that the Complainant was fit for work with accommodations. On 19 November 2020, the Complainant returned to work for 1 hour. On 26 November 2020, the OHP again advised that his medical opinion had not changed following a review. The Complainant was informed of this.

On 1 December 2020, the Complainant was reviewed by the OHP who deemed her unfit for work until 21 December 2020. The sick pay was therefore reinstated effective from Monday 30 November 2020. On 17 December 2020, the Complainant was reviewed by the OHP, Dr S and she was deemed fit for work with accommodations from 21 December 2020. The Complainant did not agree with the OHP’s advice. On 18 December 2020, the Respondent arranged a second review by a different OHP Dr M. This second opinion deemed the Complainant fit to return to work and the OHP encouraged the Complainant to return to work on modified duties.

Between 4 January 2021 – 12 January 2021, the Complainant returned to work on a phased

basis with accommodated hours as per the advice of the OHP and was paid sick pay to support the rehabilitation hours advised by the OHP during this time. Between 13 January 2021 – 15 January 2021, the Complainant was absent from work and did not receive sick pay as the OHP deemed the Complainant fit to work on accommodated hours at that time. The Complainant was provided with the opportunity to take annual leave. On 18 January 2021, the Complainant attended an OHP, who deemed the Complainant unfit to work at that time. A follow-up review was scheduled 4 weeks after and the Complainant was reinstated on the sick pay benefit.

On 3 February 2021, the Complainant submitted a formal grievance in accordance with

the Company grievance procedure to have the matter re-evaluated. The grievance related to the Complainant not receiving sick pay from 9 November 2020 and 27 November 2020. During this time, she was deemed fit to work by an OHP. The Complainant was afforded all rights under the principles of natural justice and fair procedure. Both the grievance manager and the appeal manager upheld the decision to remove the Complainant from the sick pay benefit for the dates in question as they deemed this action to be in compliance with the rules of the scheme.

Preliminary Matter:

The Law

The Workplace Relations Act 2015 at section 41, in relevant part, provides as follows

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

 8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

FINDINGS:

I note the Complainant’s assertion that there were two alleged contraventions of the Payment of Wages Act. Specifically, she stated that she was not paid for a period of 3 weeks from 9 to 27 November 2020 as well as three days in January 2021. While the complaint relating to the non payment of sick days in January 2021 was made to the WRC in time, namely on 1 June 2021, the complaint in relation to the non payment in November 2020 was not made within six months of the alleged contravention. When asked why she did not do so, the Complainant stated that she was attempting to resolve the matter internally in the first instance.

The Labour Court has consistently held that a Complainant’s decision to delay referring a statutory complaint to the Workplace Relations Commission beyond the six-month time-limit provided for in section 41 of the Workplace Relations Act for the purpose of exhausting an alternative means of resolving their dispute does not constitute reasonable cause for the delay. One such decision in which the Court considered this matter is Business Mobile Security Services Limited T/A Seneca Limited T/A John McEvoy EDA1621.

The Complainant in that case had sought to apply for an extension of time on the basis that he had attempted to resolve his dispute through the Respondent’s established internal procedures. The Court held however that the Complainant had not thereby established reasonable cause for his delay:

“The Court finds that the issues that arose in the course of those meetings were in the nature of industrial relations grievances that contained no indication that a complaint under the Act was either imminent or in contemplation. They amounted to an alternative way of resolving the issues in dispute and did not form part of a procedure that acted as a prelude to commencing a complaint under the Act. Instead the Complainant decided to forego the option of proceeding under the Act and instead chose to try to settle the matters in dispute through other means. When that did not work out to his satisfaction he then sought to rely on his choice to justify the delay in bring proceedings under the Act.

The Court finds that in the particular circumstances of this case the Complainant made a choice and must take the consequences of that choice. He chose not to pursue a complaint under the Act, allowed time to pass and found himself statute barred when his chosen procedure did not resolve the matter to his satisfaction.

The Court finds that such a decision cannot justify the delay in bringing proceedings under the Act and accordingly determines that the complaint is statute barred.”

In light of the above Labour Court decision, I find that I do not have jurisdiction to hear the alleged contravention of the Act that occurred in November 2019 and can therefore only deal with the three days that the Complainant was not paid for while she was on sick leave in January 2021.

Substantive Matter

The Law

Section 1 of the Payment of Wages Act 1991 states:

“ wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,

The Act at Section 5, in relevant part, provides as follows:

5. (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

And

5(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

FINDINGS

I note that on 17 December the Complainant was deemed fit to work with accommodations by the OHP Dr S from 21 December 2020. When she disagreed with this advice, she was referred to a second OHP Dr M on 18 December 2020 who also deemed her fit to work with accommodations. While I note the Complainant’s assertion that Dr M had informed her, prior to her return, that she should leave work if she became ill, crucially, there was no medical certificate provided by any of the Respondent’s OHPs to confirm that she was in fact sick between the dates of 13 – 15 January 2022.

In the absence of a medical certificate to confirm that she was unfit to work between 13 – 15 January 2022, the Respondent is entitled to rely on both the medical advice of Dr S and Dr M issued on 17 and 18 December 2020, which confirmed that the Complainant was fit to work with accommodations. I also find that this is in accordance with the Respondent’s attendance and sick pay policy which states that the payment of sick pay will not apply “if an employee does not report for hours rostered while on a phased rehabilitation plan”.

I find that I do not have jurisdiction to hear the first alleged contravention of the Act and that the complaint in relation to the second alleged contravention is not well founded.